The court affirmed that without proven cruelty or desertion, a divorce application under Section 13 of the Hindu Marriage Act is likely to be rejected in favor of restitution of conjugal rights under Section 9.

JUDGMENT :

CHANDRA PRAKASH SHRIMALI, J.

1. By way of both the instant civil misc. appeals filed under Section 19 of the Hindu Marriage Act, the appellant has raised her grievance against the judgment dated 24.05.2023 passed by the learned Judge, Family Court, Merta (hereinafter to be referred as ‘the Family Court’) in Civil Case Nos. 185/2021 and 189/2021, whereby the appellant’s application filed under Section 13 of the Hindu Marriage Act for divorce was rejected and the respondent’s application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was allowed.

1.1. The appellant has invoked magnanimity of this Court to set aside the judgment impugned dated 24.05.2023, allow her application under Section 13 of the Hindu Marriage Act, dismiss the application of the respondent under Section 9 of the Hindu Marriage Act and pass a decree of divorce accordingly.

2. The brief facts necessary for disposal of the instant appeals are that the appellant solemnized marriage with the respondent on 25.05.2013 and their siblings also married each other as per ‘Aata Saata’ rituals. Subsequently, the respondent deserted the appellant shortly after the marriage, having treated her with cruelty and even returned her belongings on 21.06.2013. Upon such cruelty as well as desertion for more than 8 years, the appellant preferred an application under Section 13 of the Hindu Marriage Act for divorce before the learned Family Court on 12.11.2021. Afterward, the respondent preferred an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the learned Family Court on 13.09.2022 with the accusation that the appellant deserted him and subjected him to cruelty.

2.1. The learned Family Court vide a common judgment dated 24.05.2023, dismissed the application filed by the appellant under Section 13 of the Hindu Marriage Act and allowed the application filed by the respondent under Section 9 of the Hindu Marriage Act, thereby directing the appellant to live with the respondent and discharge her matrimonial obligations.

2.2. Being aggrieved by the judgment impugned dated 24.05.2023, the appellant has preferred these appeals for quashing of the same.

3. In support of the above facts, learned counsel for the appellant submits that the learned Family Court has erred in passing the judgment impugned, as the reply and the affidavits filed on behalf of the appellant remained unrebutted; therefore, the judgment deserves to be set aside.

3.1. It is also submitted that the contradictory statements of respondent, claiming a lack of children and physical relations during the marriage, are inherently implausible, exposing a calculated attempt to deceive and mislead the learned Family Court in order to secure a sympathetic ruling. Thus, the impugned judgment is flawed, manifestly perverse, illegal, unsupported by the record and as such warrants reversal.

3.2. It is further submitted that the learned Family Court has committed a significant error in not admitting the unrebutted facts of cruelty and mistreatment mated out to the appellant at the hands of the respondent, including ill-treatment, dowry harassment, physical violence while he was intoxicated and ultimately, her wrongful ouster from her marital house. Furthermore, it is submitted that the aforesaid facts were corroborated by the affidavits of the appellant and her family members, which remained uncontested as the respondent failed to appear before the learned Family Court and as such there was no legitimate reason for the learned Family Court to disregard these unrebutted facts; nevertheless, the learned Family Court overlooked the same and arbitrarily passed the impugned judgment, thereby allowing the application of the respondent and dismissing the application of the appellant. Thus, the impugned judgment is per se illegal and arbitrary and requires to be overturned.

3.3. Lastly, learned counsel for the appellant submits that it is pertinent to menti